Checks and Balances Will Not Save Us

If the polls are to be taken seriously, and I think that they should be, we are about to see some (small-d) democratic accountability at the ballot box in November. The combination of historical patterns that favor the opposition party in mid-term elections, coupled with high gasoline/diesel prices and President Trump’s low approval numbers, should sum to a Democratic majority in the House of Representatives and is increasingly looking like a majority in the Senate as well. For those who are concerned by America’s democratic backsliding, especially as manifested by an executive branch that is not being constrained at all by the legislative branch (and only in part by the judiciary), this electoral potentiality brings hope.

We have all watched the Trump administration ignore Congress, whether it be in not spending monies that have been legally appropriated, going to war with Iran without any authorization, or trying to usurp Congress’s power to regulate elections via executive order (that one was at least temporarily blocked by the Supreme Court). To list all of the ways in which the administration has defied legislative intent would take its own essay or possibly book.

We were all taught (heck, I myself have taught) in American Government 101 that the basic design of the US constitutional order is one of separated powers, legislative, executive, and judicial, and that each has a set of tools to check the powers of the others to make certain that an appropriate amount of balance exists between the three.

As such, an election that changes control of one of the branches ought to be a corrective to overreach by another. Surely, a Democratic Congress will be able to deploy its constitutional tools to rein in the Trump administration!

Unfortunately, checks and balances are not coming to save us. Will a Democratically controlled Congress have some tools to deploy? Some, but not as many as some may hope.

What’s important to understand is how the very design of the Constitution is at the root of the problem, both to temper expectations but, more importantly, to focus the mind on real solutions.

To be sure, the coming response at the ballot box is a positive sign that some level of democratic reckoning is possible. It is quite clear that the public is largely unhappy with the direction the government is headed, and it is heartening that there will be the usual opportunity for the public to formally share their views through the voting process. But there are profound limits to democratic responsiveness in the United States. This has been known for some time, but the Trump administration, especially the second term, has brought this fact into sharp focus.

Let’s concentrate here on the main legislative checks on presidential power.

On paper (specifically, in Federalist 51), Madison’s description of each branch having “a will of its own” which that branch would jealously guard sounds good. It seems reasonable that each branch would wish to avoid “gradual concentration of the several powers in the same department” (such as the executive ignoring or usurping legislative power) and therefore that each should have “the necessary constitutional means and personal motives to resist encroachments of the others.”

Broadly speaking, there are two main legislative checks on presidential overreach embedded in our constitutional structure: passing laws, and impeaching and removing the president. There are some other ways the legislature can affect the executive, but these are the two main powers of major consequence.

Legislation can constrain the president by setting legal guidelines on what the executive can and cannot do. It can also constrain the executive by using the power of the purse. On paper, the power to make the laws should make the legislature the predominant power in the federal government. Certainly Madison thought this would be the case.

Further, if the president ever got out of hand, the Congress could impeach him in the House and remove him via a conviction in the Senate.

So, easy-peasy, right? A new Congress can just pass laws to constrain Trump and threaten to remove him from office if he doesn’t behave.

But, of course, “the Congress” is not a singular entity that acts the way Madison theorized in Federalist 51. It does not have a singular “will of its own,” largely because of the existence of political parties.

The presence of political parties in Congress and in the White House utterly reconfigures the relationship of checks and balances. Instead of two branches struggling over power, with Congress having the upper hand, our system creates a powerful bridge between the branches: political parties.

If the president’s party holds a governing trifecta (House, Senate, White House), then there is little pressure to “check” the president by passing laws to constrain him. Indeed, the incentive is to further empower the president in such cases. And if, as had been the case with Trump, the president ignores Congress, the incentives to try and correct the president are not present because the political costs of defection from one’s party can be career-killing (see, e.g., Thomas Massie, John Cornyn, and Liz Cheney, to name but three).

On that last point, we can see part of the flaw in Madison’s theory: “the personal motives” of individual politicians are frequently not “to resist encroachments of” the other branches. During periods of unified government, parties cooperate across branches.

There is also the fact of the matter that the president can veto any legislation passed to constrain him (his own check on another branch). And while Congress can override such a veto with a two-thirds vote in both chambers, the reality is that getting that kind of consensus is nearly impossible. This fact means that even if the Democrats win both chambers in November, their ability to check the president via legislation is essentially nil.

Math is a harsh mistress, and Congress rarely has the votes to counter-check the president by overriding a veto.

Of course, there is the impeachment power, but that requires a two-thirds majority in the Senate. We have already seen that even after Trump was seen to have fomented an insurrection, the Republican-controlled Senate was unwilling to convict Trump in his second impeachment trial, which would have barred him from holding federal office ever again. His term was over, I would note, and there was clear hope he was done with politics. If under those circumstances the president’s party would not vote to convict in an impeachment trial, can anyone really take the impeachment power seriously as a check on the executive?

The partisan math is again clear.

All of this has been true since the beginning of the republic, so one might ask why it is now becoming a problem. First, there has been a profound re-sorting of our parties into more rigid political actors, with the 1994 midterms being a major inflection point in this regard. Over the decades since then, we have seen the parties become more rigid, geographically sorted, and the population more polarized.

And then we elected a president who wanted to act autocratically. In the end, much comes back to this: we, the people, elected a man who aspired to be king to our highest office.

The combination of these factors has demonstrated profound flaws in our constitutional design. And these flaws are exacerbated by problems such as largely non-competitive elections that do a poor job of representing the public.

The problem of polarized parties leading to dysfunction in a separation of powers system is not a surprise to comparative politics. Juan Linz argued back in 1990 in his classic article “The Perils of Presidentialism” that such systems can be unstable and lead to democratic backsliding, if not regime crisis. He noted that Congress and the president can each claim their own democratic legitimacy, since each is elected separately, and so if there is a conflict between the two, the president often wins because the executive controls the actual levers of power.

For the sake of argument, let’s assume a Democratic win in both chambers in November to consider the dilemma.

Come January, a new legislature will come into office having been given democratic legitimacy from the 2026 electorate. But we will also have an executive given democratic legitimacy from the 2024 electorate.* Which claim is more powerful? The president will claim that he is unique in being the only office elected nationally. Congress will claim that they are the direct reflection of the present sentiment of the country (which is profoundly unhappy with the president). This creates a conflict that may not always be overtly stated, but nevertheless exists, and when a president is as autocratic and personalistic as Trump, the conflict can be quite serious.

An example of this mindset was provided by Trump’s deputy chief of staff Stephen Miller at a White House Press Briefing on February 20, 2025:

So, I'm glad for the opportunity for a brief civics lesson. A president is elected by the whole American people. He's the only official in the entire government that is elected by the entire nation. Right? Judges are appointed. Members of Congress are elected at the district or state level. Just one man.

And the Constitution, Article Two, has a clause, known as the vesting clause, and it says, "The executive power shall be vested in a president," singular. The whole will of democracy is imbued into the elected president. That president then appoints staff to then impose that democratic will onto the government.

Such dueling claims of legitimacy are a problem because, as Linz argued, presidentialism leads to a “winner-take-all” mentality “that tends to make democratic politics a zero-sum game, with all the potential for conflict such games portend.” As such, a given president might have “the conviction that he possesses independent authority and a popular mandate [which] is likely to imbue a president with a sense of power and mission” (p. 56). That certainly sounds like Trump.

Linz adds:

Even more ominously, in the absence of any principled method of distinguishing the true bearer of democratic legitimacy, the president may use ideological formulations to discredit his foes; institutional rivalry may thus assume the character of potentially explosive social and political strife. Institutional tensions that in some societies can be peacefully settled through negotiation or legal means may in other, less happy lands seek their resolution in the streets (p. 64).

As such, a president like Trump is willing to push the boundaries of his authority. He might, as Trump has done, simply not spend money appropriated by Congress or divert funds from one purpose to another in contravention of the law. Or simply attempt to use executive orders as a means of quasi-legislation. It is noteworthy, for example, that Trump has tried to use EOs to subvert the Constitution itself (the birthright citizenship case) and to ignore Congressional powers to regulate elections. He was rebuffed in the first case by the Court (although not as definitively as one might have expected), and in the second case the issue was punted into the future.

When such a president has a governing trifecta, he can ignore Congress because they are likely to be compliant. If, after the midterms, we find ourselves in divided government, Trump will find himself under additional scrutiny, which is a positive, but he will also be incentivized to ignore Congress even more deeply, and he will claim that his win in 2024 is sufficient to do so.

Further, the exigencies of separation of powers create another set of problems for Congress. So, yes, there will be hearings and investigations. However, for these to be successful will require subpoenas of relevant administration officials. The good news is that Congress has subpoena power. The bad news is the main way to enforce subpoenas if they are ignored is referral to the Justice Department for prosecution. It seems unlikely, to put it mildly, that the DOJ headed by Todd Blanche would pursue criminal contempt on behalf of a Democratic Congress. There is also the fact that criminal contempt can be pardoned by the president (yet again, a constitutional “check” that favors the executive, like the veto power).

All of this is to say that even if the Democrats control Congress starting in January, they will be unable to use the basic checks of legislation and impeachment against the administration. And while increased oversight will take place, the administration will be uncooperative, if not obstructive.

All of this has to be taken in mind when we find ourselves frustrated at the moment about the inability of the opposition to counter Trump. These realities are also a cautionary reminder about what the limitations are going to be even if a blue wave crashes over Washington in November.

Will there be more vigorous investigation and scrutiny over the executive? Yes, and that is a good thing, but the ability to undo the damage (such as the disastrous Iran war or the senseless damage being done to our friendship with Canada) is simply not going to happen.

The most important check, ultimately, on the government is the electoral process; it should be an incentive-laden feedback loop. But it isn’t; too many seats in Congress aren’t competitive. Even given the substantial dissatisfaction with the Trump administration and the direction of the country, perhaps only 43 of 435 House seats are competitive—that is a mere 10% of the seats. Likewise, only nine Senate seats are competitive this cycle. While that is 26% of the seats up for election (we only elect one-third of the Senate every two years), that is only 9% of the chamber. Further, as Linz notes, the fixed term the president serves means that he is currently insulated from direct electoral consequences, despite the majority of the country thinking we are on the wrong track.***

Why bring all of this up?

First, to temper expectations about what will happen after the midterms. Even if the Democrats achieve the best realistic outcome in November, their ability to truly check Trump will be limited. He can veto legislation. Impeachment and removal is out of the question, even if impeachment alone is not—indeed, it seems likely. Attempts at real oversight are coming under such a scenario, but administration officials are likely to be uncooperative, or even downright refuse to participate, and the DOJ will hardly be of help in that case. It should be emphasized that showing the public real evidence of malfeasance, including the administration publicly refusing to cooperate, is useful information and will be of political use going into 2028. The pro-democracy movement needs to use all its tools to educate the public about how truly criminal and authoritarian this administration has been. But formal sanctions are unlikely.

Second, it is important to recognize that the basic outline of what I have described is not new. Divided government has been the norm since 1995.** Nine of 16 two-year cycles have seen divided government (usually both chambers in the hands of one party, and the presidency in the hands of the other). Four times the Republicans have had a trifecta, and twice the Democrats have. One cycle (2001–2003) was mostly Republican control, with the Senate being under Democratic control for part of the cycle.

It seems worth noting that even when a party has a trifecta, the filibuster in the Senate makes actually governing by legislation difficult. The Obama administration had a filibuster-proof Senate majority during parts of its first two years—making it the only time during the period in question when a party could freely legislate without having a minority veto in the Senate.

While conventional wisdom suggests that such circumstances lead to the need to compromise, the reality is that it leads to dysfunction. It is noteworthy that Congress struggles to pass a budget under its own rules and frequently has to resort to continuing resolutions. Even with such a workaround, Congressional failure frequently leads to government shutdowns.

In addition to dysfunction in the legislature, the executive has been accruing more and more power for decades, especially in foreign and defense policy. Arthur Schlesinger dubbed this accrual of power the “imperial presidency” over 50 years ago in his 1973 book, and that power has continued to accrue. Congress’ inability to contain Trump’s war in Iran is indicative of a long-term lack of control over the president’s actions in this realm. Trump refusing to even play the game of trying to get some fig leaf of congressional acquiescence to the conflict underscores how anemic Congress has become in this realm, despite the parchment constraint on war-making in the Constitution. Linz, not Madison, understood the nature of our dueling institutions.

Third, all of this is just an additional reason to call for serious reform to our political system. Trump may be exploiting the pathologies of separation of powers and showing the lack of teeth of checks and balances, but the problem is inherent to the system. Not only will future Trump-like figures see the blueprint for autocratic rule, but even allegedly pro-democratic presidents will be more than tempted to, like Trump, just “do stuff” and ask for forgiveness later (if they even ask).

Electing a Democratic Congress in 2026 is a necessary step toward addressing an out-of-control executive. Another step will be electing a pro-democracy president and Congress in 2028. But then there has to be a proactive reform agenda in place that takes the deficiencies of our system seriously, or we will continue to backslide (here’s a potential starting spot for such an agenda). Just hoping that we can go “back to normal” is a pipe dream that, if pursued, will lead to further erosion of American democracy.

To return to Madison and Federalist 51, “A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” This was, and remains, a call to both look to elections as a feedback mechanism, as we will in November, but also to design government so as to produce the best possible outcomes for the population.

Reform is needed, and a clear-eyed understanding of where the flaws in the system are is essential, if we want real fixes.

Notes

*And this ignores the complexity inherent to US politics that one third of the Senate derived their democratic legitimacy also from the 2024 electorate, while another third did so from the 2022 electorate. And never mind the somewhat different nature of House vs. Senate representation.

**I pick that dividing line because of its importance to the above-mentioned shifts in the party system. Divided government was common prior to that mark as well, but the party system had appreciably different characteristics, not the least of which being that most southern conservatives were Democrats, not Republicans. This made for a very different legislative environment.

***There is also the problem that the Senate is not a representative body, given that each state gets two Senators regardless of population size. This means that a minority of the voters frequently control the Senate, and the filibuster allows that minority to block legislation if they aren’t in charge. Other issues include the fact that twice since 2000 the loser of the popular vote became President, which has directly influenced the judiciary. The list of ways in which our system does a poor job of providing adequate and real democratic feedback is an essay (or book) unto itself. A few are mentioned in my July piece, “Is the United States of America a Republic, and Not a Democracy?”